Mr. John Devitt:

I thank the committee for inviting us to contribute to it about the issues encountered by whistleblowers and related challenges faced by organisations in Ireland. I am joined by Ms Heffernan, acting legal counsel for Transparency International Ireland, TI Ireland, and managing solicitor of the Transparency Legal Advice Centre; Ms Casey, programme manager at TI Ireland responsible for our Integrity at Work programme; and Dr. Kierans, BL, lecturer in law at Maynooth University and an associate of TI Ireland. Their biographies have been included in our written submission and we would be happy to answer whatever questions members may have.

I should explain who we are and what we do, particularly our work with whistleblowers and organisations. TI Ireland was founded in 2004 and is a member of the Transparency International movement of anti-corruption organisations, which has its international secretariat in Berlin. We engage in lobbying, research and advocacy aimed at addressing the risk of corruption. In 2009, we began lobbying for what became the Protected Disclosures Act 2014. In 2011, TI Ireland launched the country's only freefone helpline for whistleblowers and witnesses of wrongdoing. In 2016, we established an independent law centre, the Transparency Legal Advice Centre, which provides free legal advice to people making protected disclosures or disclosures of wrongdoing, and launched Integrity at Work, a programme aimed at helping organisations to create safe working environments for people to speak up.

Since we launched our Speak Up helpline, we have helped in or around 1,850 clients, of whom approximately one in three have been categorised as having made protected disclosures. We observed a 120% increase in the volume of calls to the helpline after the 2014 Act was introduced. Of these, more than 100 clients have been referred to the law centre for free legal advice. Each client receives an average of more than 30 hours of free support, valued at approximately €10,000 per client. In addition, 30 organisations have joined the Integrity at Work initiative, including 12 agencies sponsored by the Department of Justice and three institutes of technology sponsored by the Department of Education.

The work we do informs our analysis and recommendations to employers and the Government and is published in our biennial Speak Up report. We have also gathered data through our integrity at work survey, which highlights some cultural as well as systemic issues that the committee might find of particular interest. Workers might gain some encouragement from the perhaps counter-intuitive finding that most people blowing the whistle at work say that they have not suffered as a result. Of the 150 or so private sector employees who took part in our integrity at work survey in 2016 and said that they had spoken up about wrongdoing at work at some point during their careers, only 21% said that their disclosures had had a negative impact on them. In contrast, 28% said that the outcome had been positive. This finding is similar to those highlighted in employee surveys in other jurisdictions and suggests that most employers act responsibly.

However, it would be unwise to take this statement at face value alone. If one concludes that one in five workers is penalised for speaking up and translates that figure to the Irish workforce, it suggests that more than 30,000 people have suffered some type of detriment for blowing the whistle at some point in their careers. Indeed, it only takes one person to be made an example of for their co-workers to be silenced or one nurse to remain silent for patients' lives to be put at risk. Conversely, we can see the role that just one public servant can have in exposing malpractice to understand the importance of whistleblowing in making our public services more open and accountable.

The benefits of whistleblowing are increasingly recognised, and according to the Association of Certified Fraud Examiners in the United States, 48% of all cases of fraud are exposed through tip-offs from staff. The evidence in favour of protecting them from reprisal by their colleagues or employers is incontrovertible and is why Ireland and other EU member states have begun enacting and implementing stronger legal safeguards for whistleblowers.

Despite the introduction of these safeguards, whistleblowers continue to bear the overwhelming burden and risk of speaking up. According to our research, workers lose more than 90% of protected disclosure claims brought before the Workplace Relations Commission, WRC. Work by Professor Kate Kenny and others shows how whistleblowers in certain sectors such as banking can find it impossible to find work in their given professions again. The impact of reprisal on family, physical well-being and the mental health of whistleblowers can be devastating.

It should also be noted that it is the fear of futility as much as the fear of reprisal that serves to deter people from speaking up.

It might not be surprising that one of the most common sources of complaints to our helpline relates to a failure to investigate wrongdoing. When an employer or regulator fails to address a concern, it exposes the worker to reprisal by allowing his or her colleagues to infer that the worker is in some way unreliable or untrustworthy. Indeed, the UK courts have found that a failure to investigate may be considered a form of whistleblower detriment. When the employer’s default position is to challenge a legal ruling in favour of a whistleblower, it risks prolonging unnecessary hardship for the whistleblower and his or her family, courting public controversy and undermining public confidence in that institution.

The difficulties employers face in dealing with protected disclosures should also be taken seriously. They often struggle to meet the expectations of workers who might reasonably ask that they be kept informed of the progress of investigations. They might not be aware that a whistleblower is being penalised. Balancing the rights of whistleblowers and respondents can be difficult, and those accused of wrongdoing and their representatives will often mount stiff challenges to assessments or investigations. Employers might not have the resources to investigate or the necessary skills or knowledge to do so, while State bodies often find themselves investigating concerns only to find that an investigation is already under way by a different agency.

More guidance and support for employers in dealing with protected disclosures will help, as will forthcoming changes to the law, but training, education and public awareness are essential. Our research suggests that only 30% of Irish private sector employers have procedures in place. It is essential that organisations of all sizes and sectors adopt policies and procedures in preparation for the transposition of the EU whistleblowing directive later this year.

Members will see that we have made recommendations to the Government on overcoming many of these challenges and we are happy to discuss the solutions we offer or propose.